March/April 2007: A Washington Fable?

Once upon a time in a land called Washington, Congress and the President created a little think tank to help federal regulatory and adjudicatory agencies do their jobs better and at a lower cost. Staffed by a small group of employees and assisted by volunteers—mostly private attorneys, judges, academic experts, and agency regulators—the think tank became a respected and valued problem-solver in the arcane world of administrative law.

The little think tank chugged along for more than three decades, providing expert nonpartisan advice to all three branches of government on how to improve administrative law and processes. It issued countless reports on reinventing agency rulemaking and adjudication. It prompted bipartisan legislation on a range of reforms. It even nudged government agencies to adopt changes that improved transparency and accountability,making it unnecessary for Congress to pass further laws.

The little think tank had no authority to order agencies to reform themselves. It had only the power to persuade. The think tank possessed no political constituency. Its supporters were only those who were interested in improving government and its administrative processes.

But that didn’t stop the think tank from coming up with the idea of negotiated rulemaking or innovative alternative dispute resolution processes. Nor did it stand in the way of developing a model statute on civil penalty sanctions or guiding agencies on how to conduct open meetings. The considerable expertise and regulatory knowledge provided by the think tank pointed the way to countless millions of dollars in savings and efficiency throughout the halls of the federal government. Its recommendations to the Social Security Administration alone—on ways to improve its appeals process—saved a reported $85 million annually. Because of the little think tank’s high-quality work and independent stature, it enjoyed bipartisan support on Capitol Hill, and it became a rare Washington success story.

But one day, some members of Congress with big budget-cutting knives began to set their sights on the think tank. Claiming the think tank had “fully accomplished its mission,” these legislators began to plot to kill the little think tank. Some officials whose interests had previously been harmed by the think tank’s recommendations also called for its demise. There was a loud but brief outcry from the think tank’s friends and loyalists, but their pleas went unheard. The budget-cutters prevailed and zeroed out the think tank’s funding—allotting only $1.8 million—and sent it down in flames.

Time passed. Government got bigger, not smaller. Power shifted in the White House and the Congress. Memory of the little think tank faded. But not everyone in Washington forgot about its work. Nearly a decade after the think tank shut its doors, some leaders recalled how useful the little think tank had been in helping government officials solve regulatory problems. Some people began to dream of reviving the think tank. Two Supreme Court justices started to talk excitedly about reactivating it and testified before Congress and urged its revival. Congress listened and became convinced and passed a law restoring the think tank in name. But there was only one problem. Congress didn’t budget the dollars needed to help the think tank restart operations. And thus the think tank remained little more than an idea in a city with more than enough ideas.

Is this only a Washington fable? Not really. All of this actually has happened. The little think tank is an organization called the Administrative Conference of the United States (ACUS), which Congress created in 1964 to serve as the federal government’s in-house expert and coordinator of administrative procedural reform. For more than 30 years the think tank enjoyed broad support for its valuable work before being terminated by Congress in 1995 during a budget-cutting rampage. Nine years later, in 2004, Congress began to reconsider its earlier decision. Supreme Court Justices Antonin Scalia and Stephen Breyer praised the work of the agency during congressional hearings.

Ultimately, Congress reauthorized ACUS during passage of the Federal Regulatory Improvement Act of 2004. Now, more than two years later, Congress still has not approved the modest $3.2 million envisioned for the start-up of the Administrative Conference of the United States.

Supporters of ACUS are hopeful that the FY 2008 federal budget, up for approval later this year, will contain sufficient funding for it. The Federal Bar Association has called upon Congress to make that happen.